For some time, Washington local governments have been asking courts to consider pre-election challenges to local citizen ballot initiatives based on a claim that the proposed initiative would exceed the scope of the local government’s statutory authority. The Supreme Court has authorized these types of challenges in very limited circumstances.

However, while a local government may raise such a claim before the court, a new decision from the Court of Appeals, Division II, holds that a local government is prohibited from using public funds in opposition to ballot initiatives, unless an exception applies. State of Washington v. Economic Development Board of Tacoma, ___ Wn. App. 2d ___ (2019).

The Case

Before this case, the Port of Tacoma had successfully obtained an injunction preventing a local ballot initiative from being placed on the ballot, in part because it conflicted with state law. Port of Tacoma v. Save Tacoma Water, 4 Wn. App 2d 562 (2018).

After the case was over, in response to a citizen complaint, the Attorney General brought an action in superior court against the Port of Tacoma, alleging that the Port’s use of public funds to litigate against the proposed ballot initiative violated the prohibition against using public facilities in opposition to any ballot initiative, RCW 42.17A.555.

No elective official nor any employee of his or her office nor any person appointed to or employed by any public office or agency may use or authorize the use of any of the facilities of a public office or agency, directly or indirectly, for the purpose of assisting a campaign for election of any person to any office or for the promotion of or opposition to any ballot proposition.

The superior court dismissed the Attorney General’s case against the Port, but the Court of Appeals reversed that decision.

The Port agreed that its litigation expenses counted as the use of public facilities in opposition to a ballot proposition. The Port claimed, however, that it acted lawfully under the statute in part because such litigation was within its “normal and regular conduct,” an exception to the prohibition.

But the Court pointed out that WAC 390-05-273, which defines “normal and regular conduct,” states:

No local office or agency may authorize a use of public facilities for the purpose of assisting a candidate’s campaign or promoting or opposing a ballot proposition, in the absence of a constitutional, charter, or statutory provision separately authorizing such use.

This means in the absence of a law that specifically authorizes a local government to oppose ballot propositions, such litigation cannot be consider “normal and regular” and thus exempt from the prohibition.

The Port was not able to point to any statutes that specifically authorized it to challenge ballot initiatives prior to an election, so the Court reversed and sent the case back down to the superior court for further proceedings.

Here is a potential example of a statute authorizing use of public funds in opposition to a ballot proposal: RCW 4.96.041(3) specifically authorizes a local government to fund the defense of an elected officer during the judicial hearing to determine whether a recall matter meets the legal sufficiency requirements to be placed on the ballot. Arguably, such a defense would be in opposition to a ballot proposition.

The Court did note that it did not consider certain arguments that had not been raised in a timely manner, so it may be possible for a future litigant to raise these arguments. We are also waiting to see if any of the parties will file an appeal.

For now, however, local governments need to carefully consider whether the use of public funds to obtain an injunction to prevent a matter from being place on the ballot violates RCW 42.17A.555.

The Takeaway

A court has authority to review whether proposed initiatives exceed the scope of the local initiative power, but local governments cannot spend public funds litigating against the proposed initiative prior to the election unless a statute allows such expenditures. This same prohibition likely applies to intervening in a court case in the defense of a ballot proposition should a third party bring a pre-election challenge.

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About Sarah Doar

Sarah Doar joined MRSC in September 2018.

Most recently, she served as a Civil Deputy Prosecuting Attorney for Island County. At Island County, Sarah advised on many aspects of government business, including compliance with public record and opening meeting laws. She also defended the County in Growth Management Act and Land Use litigation. Prior to moving to Washington, Sarah practiced land use, environmental, and appellate law in Florida for over eight years.

Sarah holds a B.A. in Biology from Case Western Reserve University and a J.D. with a certificate in environmental and land use law from Florida State University College of Law.